WIPO: Trying to Bury the Development Agenda

The second meeting on the WIPO Development Agenda is now finished, and the opponents of reform have made their strategy clear: tie-up the meeting in procedural posturing to forestall substantive debate on the real issues. Even as the Friends of Development tried to discuss unassailable reforms like an ethics code for WIPO, the proceedings kept getting sidetracked by countries that wanted to cut off debate.

[We've got deeper analysis and the whole day's notes after the jump.]

The United Kingdom - along with the U.S., Canada, Australia, Japan, Switzerland, and other wealthy OECD countries known at WIPO as "Group B" – responded to each attempt to debate substantive issues by stating that discussion should take place in another committee: the Permanent Committee for Cooperation for Development Related to Intellectual Property (PCIPD). If this sounds familiar, it’s because they made the same point at the first Development Agenda meeting in April. The UK recommended this in its April proposal, and just prior to this meeting, submitted a new version of its proposal for the “reinvigoration” of the moribund PCIPD. The US also made the same pitch in its opening statement on day 1 of the first meeting back on April 11. The PCIPD includes “Development” in its name, but that’s not the whole story. As the Brazilian delegate noted, moving discussion to the PCIPD would run the risk of burying the Development Agenda. It “would effectively be a garbage can for development concerns” because PCIPD is a “less hierarchically significant committee” than the current meeting.

The PCIPD reports to the WIPO Conference, a body that the WIPO General Assembly voted to disband in 2002. Before April, it had not met for two years. It’s previously been an advisory-only body, focused on technical assistance – only one part of the FoD reform proposals. Even if the PCIPD could be redesigned in the future to handle the Development Agenda and given the power to implement its recommendations, it would mean more unnecessary procedural hurdles before reforms could even be discussed. This strategy is particularly odious because it is being raised in a special, plenary-level gathering that was convened and specifically tasked with considering proposals for WIPO reform, and reporting its recommendations to the full General Assembly in September 2005. The mandate of the IIM is so clear that, after six days of meeting with very little substantive debate, it's hard not to question the motivations behind the UK and Group B proposal. Why wouldn’t any observer regard this as a cynical ploy to stifle change?

In response to the perception that their proposal was "passing the buck," the UK delegation said, "It's more like passing the baton in a relay race. It doesn't matter who has the baton as long as we are moving forward." But races are run on a track, where progress can be measured and the finish line is obvious. The opponents of the Development Agenda seem intent on running WIPO reform into the ground.

We'll be at the next and final IIM in July with more updates and analysis.

[NOTE: This is not an official transcript. Any errors and ommissions are regretted.]

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10:45 A.M.

~ Chair: Opening remarks imploring delegates to proceed efficiently, to speak only once if possible, and to respond to another country only if totally necessary. Last half hour before lunch will be dedicated to IGOs and NGOs.

~ Bahrain: Yesterday, we asked for more time to make our proposal more interactive. We'll hold off on discussing it until the proper time.

~ Chair: We'll first talk about 13 - indicators and benchmarks for the evaluation of WIPO technical assistance - then 11 and 15

~ Argentina: 13 should be seen as parts of 11 and 12, since all three comprise a section. Proceeds to present on items 11-13, summarizing each.

~ Switzerland: On 10 & 4, and also on 11-13, the guidelines for setting up such endeavors could be discussed in the PCIPD.

~ Canada: This response is to item 13. Agrees in principle with FoD. That being said, who would be responsible for this work? The Secretariat?

~ US: Pursuant to yesterday's comments, they have concerns with items 11-13, including paragraphs 71-77 of IIM/1/4 (the original FoD proposal). Feel that it is premature until we have a discussion about underlying motivations. Like Canada, we wonder who would carry out the work. How does it interact with UNCTAD or the World Bank? Also, as for benchmarks, these are usually needed to mark progress along a certain path. However, as we have concerns on paragraph 59, we need more discussion to figure out what that path may be. As for a code of ethics or a secondary office, we can't support this right now because there's no mention of member state involvement or a list of duties, and we need clarification. Code of ethics is interesting, but not sure how it would be implemented. In its current state, US has a lot of concerns with this proposal, especially given the underlying premises in the FoD proposal. Supports Swiss statement & encourages this work to live in the PCIPD.

~ India: We've heard references to misgivings about paragraph 59, but we find it difficult to recognize anything that would be objectionable. For instance, some balk at the statement of concern about IP being seen as an end in itself, claiming that nobody here feels that way. Yet several delegations have spoken at length about the need for an "IP culture." It is India's understanding that IP should further other social goals. So if there is a difficulty with statements like this, we don't understand.

~ Sweden: We are generally positive on item 13, though we agree that there is some elaboration that needs to be undertaken.

~ UK: Also positive about these proposals and are interested in exploring them in more detail. Whatever we do, we should not undermine WIPO's current ability to undertake capacity building and technical assistance. Also room to learn from other UN bodies like IMF and UNCTAD.

~ Argentina: We share the concern about this being a member-driven project, and we appreciate that other members are willing to explore this with us. In fact, in para 28 IIM/1/4, there is a proposal to undertake member-accountable & member-driven actors like WERO. Membership is an open question - our main concern is that it be as independent as possible.

~ Chile: Expresses support for new consensus on WIPO guidelines, and in the need for new benchmarks & indicators to evaluate those guidelines.

~ France: Supports benchmarks and indicators. This merits further in-depth discussion on how this can be made more concrete.

~ Chair: Proposes items 7, 8, 9 for discussion.

~ Canada: Wants clarification on order of items.

~ Chair: Apologizes, thinks that he got a bit lost. Argentina's mention of other items threw him off. We'll continue talking about 11 and 12 now, then move on.

~ Argentina: Clarification - when I spoke, I talked about all 3. Some delegations only spoke about a subset.

~ Chair: That's right - some talked about setting up a new body, others about benchmarks. I think this is a central issue, and I'm glad that debate is not over. After speaking of Items 11/12/13, we'll cover 15. Before that, what has Bahrain proposed? No discussion? Okay - then here's Brazil on Items 7/8/9.

~ Brazil: There is concern that rapidly expanding international IP regimes are placing constraints on developing countries to use IP to suit national needs. There is also concern about the burden of implementation. We think that development goals should be central to WIPO's norm setting. Yet it seems that these have been crafted with very little attention to their costs and benefits to developing countries. It seems that, to date, IP has been viewed solely as a tool to increase creative output, without attention to Least Developed Countries’ needs. Until now, norm-setting in WIPO has been focused only on arranging international agreements that are designed to strengthen IP.

In the last GA there seemed to be broad agreement among Member States to mainstream the development dimension into WIPO's activities. We want to integrate the development dimension into WIPO's norm setting activities.

Item 7 in our document refers to principles and guidelines for norm-setting. In effect it has been difficult to address development concerns into WIPO's work programme, as highlighted by the African Group with respect to norm setting.

1) Norm-setting should be member driven and transparent - One would expect Member States and only Member States to make decisions on norm-setting activities.

2) There should be a comprehensive review of its effect on sustainable development.

3) There should be recognition of different levels of economic and social levels of development. We also need to view citizens as users of the IP system.

4) Finally, want WIPO's work to be commensurate with other UN mechanisms like the Millennium Declaration’s Goals on full implementation of Convention on Biological Diversity.

Mentions WERO. Also suggest the holding of public hearings prior to any norm-setting activities.

~ Chair: Thanks Brazil for exhaustive presentation.

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~ India:

~ US: Finds the inclusion of pre-ordained language in treaties inappropriate. Their understanding is that negotiations determine the language in a given treaty, and that any country is free to offer language in a case-by-case basis.

[RB: This is somewhat ironic, given that both the USTR and the EU have “model” IP text that they seek to incorporate in their bilateral and multilateral free trade agreements.]

~ OEB (European Patent Office): 10 years after TRIPS, we have yet to see Least Developed Countries or Developing Countries that have systems that are sufficiently advanced. OEB is directly engaged in technical assistance, so they are not criticizing the work of others. It's just that IP offices may not always be the ideal targets for using IP for development, so we must look wider.

On the future of Technical Assistance, they feel that the UK's proposals are very positive [RB: Not their proposal to the IIM, but apparently a separate exchange. No more info provided.]

~ IFRO:

~ International Confederation of Songwriters, Authors & Composers & BEAM: We work in the developing world, and the criticisms that they have heard about training in the developing world are bizarre. By partnering with WIPO, they go around the developing world, building partnerships and providing education around the importance of copyright for artists and society. WIPO funds them, provides them with experts, and adds an institutional imprimatur. They have provided real benefits to real people. Urges not to throw baby out with bathwater.

[RB: We missed the following groups as we were preparing our own statements. Updates or summaries of what was said are welcome, and can be sent to Ren.]

~ Civil Society Coalition: Supports FoD. First, we think shifting this discussion to the PCIPD is improper. It would send the message that WIPO members states are only interested in tucking these issues away with the intent that nothing practical should ever emerge.

Many developed countries pay lip service to the needs of developing countries, but their proposals here indicate otherwise.

90% of WIPO funding comes not from member states but from the business sector. Therefore, proposals to enhance impartiality in WIPO are especially important.

~ IPI: Mentions that he is also a representative of civil society. Many of the civil society groups that have spoken so far give the impression that theirs is the entirety of civil society. There is no single civil society perspective. Mentions that among economists, IP-skepticism is a minority opinion. Wants to reinvigorate the PCIPD.

~ Japan: Comments on change to Item 8. Believes that it will be difficult to evaluate norm setting, but that we should suspend discussion until such an assessment can be completed.

~ Argentina: We would like to look at the organization of our work. You had mentioned earlier that we would have time to consider items 1,5, and 6.

~ South Africa: There are mixed feelings in this house about support for the Development Agenda. It is inevitable that in reform, to some it brings fear and to some it brings hope. South Africa's experience with reform is positive.

We have undertaken a radical reform process. With respect to norm setting, norm-setting should recognize differences between least-developed countries and developing countries. There should be provisions to set protection levels commensurate with the level of a country's development. There should be provisions to stop anticompetitive behavior.

~ UK: On Items 7-9, they fully agree that norm setting should be member driven. However, like previous speakers, they have concerns about the need for explicit guidelines because every country has the ability to make proposals. More discussion is necessary on impact assessments, as they are practically difficult to deploy.

~ Iran: Our position has been clearly articulated in IIM/1/4.

~ China: Concerning points 7, 8, and 9-in principle we support these proposals.

In order to be brief and specific, we hope that WIPO will consider norm setting, one of the most important missions of this organization.

Even if developing countries can reach the goals of TRIPS, it is hard for them to reach the higher standards called for in bilaterals and regional Free trade agreements.

In norm-setting we should take into account development concerns. In the Patent Cooperation Treaty reform we would like to work in consensus to take care of users. The definition of users should not be restricted to right-holders.

~ Canada: The modification of legal standards can have profound implications. We have examined the proposals, but Canada remains to be convinced of any need for new guidelines and principles for norm-setting.

With regard to impact assessments, we also have such things at the national level, and we share the UK's concerns about their exportability.

With respect to public hearings, we believe this is a national prerogative and not for us to mandate.

We'd be very interested in responses to some of these concerns.

~ Chair: We have finished discussions of 7,8, and 9 so I would like you to address the Chair's Summary.

~ Argentina: We'd like to talk about the timeframe of the meeting. We should continue discussion of the proposals before proceeding to the summary. The substantive discussion has been on the backburner for the whole three days, and so we wonder if it's necessary to spend time on the summary of the chair.

We wish we had more time to study the Chair's summary but we don't. Let's continue the discussion without spending two hours on this summary.

~ India: We share Argentina's sentiments. We are not in need of a summary, especially as we're planning to simply pick up at the next session.

~ Chair: We are in your hands.

~ Chile: We support the proposal of India and Argentina.

~ United States: It's not clear to me what is being proposed. Are we to understand that we will not have a Chair's summary as proposed by Argentina and supported by India and Chile?

~ Chair: Given that we have already adopted the agenda, which includes the summary, I think we should have it. We'll just discuss it at the end of the day. I like this idea.

~ Italy: This seems reasonable considering the text of the Chair's summary seems fair and accurate.

~ Morocco: We're wasting time. Argentina's proposal is wise, let's get on with the discussion.

~ Chair: I therefore propose that since we have moved forward in the discussions, why don't we discuss item 14. Could the UK please present this item?

~ UK: The UK has had an opportunity to present its proposal, and that it is clearly set out in documents. Won't go into detail.

The delegate has been working for UK government for 15 years. Since that time, the UK government has had a change of mindset with regard to international development. A then-moribund office called DFID was reinvigorated. It acted as an agent of change from the inside. Such was the change in mindset, that the UK Department of Trade and Industry was able to actively support the formation of the UK CIPR.

Some have argued that the UK proposal is like passing the buck. "We think it's more like passing the baton in a relay race. It doesn't matter who has the baton as long as we are moving forward."

~ Argentina: As we have said, all of the themes of the agenda being brought to the PCIPD does not seem like a good idea. That committee's theme is technical assistance. Also, would like to ask a question: the UK wants WIPO to turn this over to PCIPD, and it also seems that we are supposed to hand results back to the general assembly - why the emphasis on switching, when this itself seems to be beyond our own power?

~ Canada: PCIPD is the best venue, though we would support a review of that mandate to make sure that it is broad enough.

~ Romania: Wants to recall statement of Central and Eastern European, where we expressed support for discussion of this mandate in PCIPD. It is true that PCIPD already has a mandate, and it is our feeling that revising that agenda is the best use of our resources. Finally, Romania is fully aware of the importance of development, including Romania and IP. Yet, WIPO is not an agency totally devoted to development. Consequently, we don't think that there is a need to turn this into a solely development-oriented organization. Many of the proposals in the FoD proposal are beyond the scope here. Reform of the organization is a totally different topic.

~ Algeria: If we accept the proposal for a reinvigorated PCIPD, we must recall the mandate that the IIM is supposed to handle this. We should not fragment this into smaller parts.

~ Brazil: As we already mentioned in the first IIM, where we observed the basic thrusts of the original UK proposal, the UK proposal is a good effort in its diagnostic aspect, but a poor concept with respect to the solution. The solutions were not commensurate with the challenge we face.

The DA is not anti-IP as asserted by certain pro-IP NGOs (TB: Referring to IFPMA's intervention).

Development concerns should be factored and mainstreamed into the work of this organization, which is a UN body. By consigning it to the PCIPD, you run the risk of burying it. A rejunevated PCIPD would effectively be a garbage can for development concerns. This should not be dealt with such a fashion. The IIM is the appropriate body to discuss the DA as its status is hierarchically more significant than the PCIPD.

~ Italy: We should reinvogorate the PCIPD and we could expand its scope.

~ Switzerland: The mandate of the PCIPD is broad enough to consider DA proposals. As the UK said, we could expand the scope of the PCIPD if needed.

~ Australian: Plugs the PCIPD

~ Russian Federation: As a general comment on Item 14, we would be in favor of reinvigorating PCIPD

~ Iran: The IIM's mandate makes clear that its role is to *examine* the proposals put forth. We believe that the IIM is not necessarily the place to discuss implementation. It therefore makes sense to differentiate these issues, and reinvigorating the PCIPD is premature.

~ US: There seems to be contradiction among some members of WIPO. They articulate strong desire for reform, but oppose reform of the PCIPD.

Does not feel that the UK proposal is an attempt to put the DA in a "garbage bin" or technical assistance-only body.

~ India: Let me thank the UK for the proposal. We appreciated their nuanced understanding of the issues raised by the Development Agenda. We do not agree that these DA issues should be consigned to the PCIPD.

We are surprised to see one committee singled out for attention, especially one that is singularly lacking in teeth

We are are surprised to hear that all of WIPO's work is pro-development. Why is one committee favored over the others (such as Standing Committees on Patents, , Trademark etc) when all areas are affected by the development dimension.

Could we then send this to the Standing Committee on Patents, expanding its mandate? Or the Standing Committee on Copyright and Related Rights? Or another body? Certainly not - the work will have to be addressed in all of the relevant committees. The PCIPD, other than dealing with technical assistance, is for example singularly inept at norm setting.

Instead, we should be coming up with consensus recommendations to the General Assembly, so that *they* can delegate work appropriately to the relevant committees.

~ Japan: IP and development is a complex issue. WIPO should deal with this in an efficient and transparent manner.

~ France: We like the annexes of the UK document which will help us explore these issues in greater depth.

~ Colombia: Similar to what was said yesterday, the UK proposal is welcome, but the content & scope of the issues we are studying goes beyond the mandate that the PCIPD has to deal with these issues. PCIPD can carry out an important function, but there are decisions that may be adopted by the GA that may be out of scope for PCIPD.

We should be moving towards a set of recommendations that can be given to the General Assembly and could then be delegated to each committee.

~ UK: Responding to Argentina. We acknowledged from the outset that there may be legal issues to work out. From studying PCIPD, we note that there are no limits to its mandate. It also stems from the WIPO conference. The General Assembly is composed of WIPO Member States who are members of at least one WIPO treaty. [Ed note: General Assembly members must be a member of one of the pre-existing “Unions”, such as a party to the Berne Convention.]

The WIPO Conference, on the other hand, is composed of WIPO convention signatories and countries that are not parties to a treaty. This is the kind of cross-cutting issues included in the development.

It is my understanding that the WIPO Conference is scheduled to disperse, and the assembly would then take on the work of the committees. This is not likely to happen in the near future. We want to explore ways for the PCIPD to interact more with the GA & other committees.

~ Chile: We would like to thank the UK for its proposals. We especially would like to lend support to the proposals to carry out assessments for norm-setting and an open code of conduct.

The PCIPD can play a role in the Development Agenda, but is not necessarily competent to deal with all the issues raised by the Development Agenda. Some of this work should be dealt with in other relevant committees and also the General Assembly.

~ Chair: I would like to see if we can now deal with the Chair's Summary since we only have until 6:15.

~ Italy (Group B): We agree that this text is fair and balanced and in principle we accept the text.

~ India: We have an hour yet to go. Yet we have 15 items to deal with. Could we not deal with one or two more items, such as a proposal for the consideration of measures to ensure wider participation of civil society?

~ Chair: Let's hear if Group B can adopt this summary. If so, and it is noncontroversial, then we can proceed. I want to make sure that we can discuss this in case it requires debate.

~ Argentina: We don't think the wording of para 6 of the Chair's Summary is perfect. Bahrain's proposals were presented not discussed. In fact two new proposals were presented, but they were not really discussed.

~ Brazil: This document is a good basis. We would like to suggest minor amendments. We would like to add an additional factual paragraph between 6 and 7 that includes document numbers discussed.

In regard to para 7, we would suggest adding after "proposals" in the first line:

"derived from written submissions by Member States".

Delete the Member States at the end of statement. Delete item 10 from para 7 because 10 was dismembered into 10 and 10bis.

~ Colombia: Had the same concern as Argentina with regard to paragraph 6. Perhaps something besides "discussed." Also suggest adding a deadline for proposals so that we can have time to react.

~ US: One technical change and a question. On relationship of 10 and 10 bis, we agree with statement from Brazil to amend. In addition, however, we would like 10 bis to be made into 11, then renumber the remaining items in order to avoid confusion. Also, would like to get the exact language from Argentina on para 6.

~ India: Reads proposed language change.

~ Argentina: Adjust language slightly by removing "discuss."

~ US: More language clarifications.

~ Mexico: Wants to look at annex of summary. With regard to the content of the Mexican summary, we think it should be moved from item 15 to 19, 20, and 21 because it has much to do with Bahrain.

~ Chair: If you do that, then Mexico is no longer listed as a sponsor. Okay? Okay.

~ Argentina: We also think that we should add item 14, since that's the last item we discussed.

~ Chair: I get the impression that we don't have any objections to these changes, so I submit that we should give time to the Secretariat and continue discussion.

~ Bolivia: [Garbled]

~ China: There seems to be a translation mistake.

~ Chair: We will now deal with items 1, 5 and 6 from our list. I would ask the FoD to present these times.

~ Brazil: In the spirit of inclusion we would suggest that we could give Bahrain the floor to present one of their proposals.

~ Chair: Bahrain is not present and they indicated to me that they would rather discuss this at the 3rd IIM.

~ Argentina: We would prefer if we could discuss 1, 5, and 6 at the third session of the IIM. Could we have a general exchange on Bahrain proposals?

~ Chair: Not sure that it's wise to, at this point in time, discuss the Bahrain proposal. They've been leading the discussion, and have stated that they'd like to discuss it at the next meeting.

~ Colombia: A preliminary discussion could take place with the cosponsors, but we would reserve the right to comment later.

~ Argentina: If you would allow us to make some preliminary comments. We got this last Friday, and our capitols have been reviewing it since Monday. We'd like to present preliminary comments.

What we see in the proposal is that it goes over aspects that were already covered in the biennial meeting last month. We don't fully comprehend certain budgetary aspects of WIPO's technical cooperation activities. We don't know where the money is going.

~ US: Unclear about where we are.

~ Bahrain: Please give us more time to respond to items 16-24.

~ Brazil: There are linkages between Bahrain's proposals and discussions at the budgetary and programme committee.

~ Chair: We have the element of suspense with respect to Bahrain's proposals.

~ India: Does Bahrain believe those earmarkings adequate or excessive?

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